Post by Noam Gur
Ronald Dworkin famously argued that “[j]udicial decisions in civil cases, even in hard cases …, characteristically are and should be generated by principle not policy” (Ronald Dworkin, Taking Rights Seriously (Duckworth, 1977), p. 84. See also Ronald Dworkin, Law’s Empire (Harvard University Press, 1986), p. 244). Given the significant place policy considerations seem to occupy in civil law adjudication one might be tempted simply to dismiss Dworkin’s argument as too far removed from actual and desirable judicial decision-making. I believe, however, that there is something to be learned by critically engaging with his argument, which is what I will do (or begin to do) in this comment. The purview of my comment will be private law, and my examples will be drawn from tort law, the private law area I am most closely familiar with. I will suggest that while the principle/policy distinction does not mark a rigid boundary circumscribing what courts should do (or characteristically do), it plays a different and important role in shaping judicial decision-making.
First, what does Dworkin mean by policy and principle? Policy arguments are described by Dworkin as arguments that justify a political decision by showing that it serves some collective goal of the community as a whole (Dworkin, 1977, p. 82). Arguments of principle, on the other hand, are arguments that justify a decision by showing that it respects or safeguards some individual or group rights (ibid.). In policy decisions, according to Dworkin, the requirement for consistency with past decisions is relatively weak. The primary question a policymaker asks herself is what strategy would best serve the goals and welfare of society, not what strategy is consistent with past decisions. In contrast, in decisions based on principle, he argues, there is an integral and relatively strong requirement of consistency with past decisions. One of the main grounds for determining the legal rights of parties to a dispute, according to Dworkin, is what he calls the relevant institutional history—primarily, past legislative and judicial decisions—and the requirement that like cases be treated alike.
Dworkin’s above thesis is, I think, mistaken and instructive at the same time. Its mistake lies in denying that anything of what judges characteristically do and should do in the relevant legal areas is properly described as policymaking. In fact, there are cases which require judicial consideration of social and economic implications that Dworkin himself did not necessarily wish to exclude from the court’s deliberation, but which, contrary to his view, introduce an element of policymaking into the decision. This may be the case, for example, when a court determines the limits of negligence liability by reference to the tests of the duty of care (whether its decision is conceived of as demarcating the scope of the duty or, following Goldberg and Zipursky, as determining whether to grant an exemption from the duty—see John Goldberg and Benjamin Zipursky, “The Restatement (Third) and the Place of Duty in Negligence Law” 54 Vanderbilt Law Review 657 (2001)). A decision of this type may have broad implications such as driving up insurance premiums and imposing precautionary burdens that may inhibit socially valuable or even essential activities and/or affect the price of related services or products. To be sure, in some such cases the court may rightly feel that the expansion of liability sought by the plaintiff is so far-reaching that it is better left to the legislature. But there are cases in which the task of developing the law in this area falls to the court, and in performing this task the court should take into account the social and economic implications of its decisions. Judicial decisions of this type are most naturally understood as involving an element of policymaking.
Dworkin attempted to show that his thesis could be reconciled with some instances of judicial resort to what is commonly regarded as policy considerations. Thus, for example, he suggested that “[i]f a judge appeals to public safety or the scarcity of some vital resource” (Dworkin, 1977, p. 100), her appeal might be understood as an appeal to principles protecting the rights of members of the public (not party to the dispute) to their security or just share of that resource. This strategy of reconciliation, however, is unsatisfactory: for the only way it can capture fully the social and economic considerations that should and do feature in courts’ decisions is by stretching the sense of “principle” open to judicial recourse to a point where it becomes hard to draw the line between policy and principle (for relevant discussion see, e.g., Kent Greenawalt, “Policy, Rights, and Judicial Decision” 11 Georgia Law Review 991, 1016-26 (1976)). This would drastically water down the initial point of Dworkin’s thesis. It seems to me more convincing and less strained to acknowledge, instead, that the above instances reveal a mistake in Dworkin’s thesis.
But the thesis, as noted above, is also instructive, though in ways that Dworkin did not quite intend it to be: primarily, it throws light on the proper place of policymaking in adjudication. One key fact that the thesis usefully highlights is that a judge characteristically does not approach the task of deciding a case by asking the question: would it be best for society if the claimant wins the case, or if the defendant wins it? Rather, she starts by asking what the law is on the matter at hand, and which of the adversaries is entitled to win the case in accordance with the law. Her starting point is an attempt to derive the current decision from norms based (at least partly) on past legislative or judicial decisions, and to link those decisions in a coherent manner. This is true not only of easy cases, where the legal materials point to one straightforward outcome, but also of cases where the parties’ legal entitlements are more uncertain—as illustrated, for example, by the discussion devoted to past cases in landmark tort decisions such as Donoghue v Stevenson  AC 562, McLoughlin v O’Brian  1 AC 410, MacPherson v Buick Motor Co.  217 N.Y. 382, and Sindell v Abbott Laboratories (1980) 607 P 2d 924.
There is also a normative element of truth to Dworkin’s thesis. It is for good reason that judges approach their task in the manner just described: their doing so is rooted in some of the basic values underlying the function of law and adjudication. The requirement that like cases be treated alike, for example, helps render adjudication more impartial and fair. A commitment to coherence serves to reduce the degree of arbitrariness in judicial decisions. And the judicial effort to ground the present decision in past decisions minimizes, as far as possible, elements of retroactive imposition by law—which resonates with one of the central desiderata of the rule of law. Living up to these moral canons is not just a worthy aim, but also a prerequisite for the legitimacy of a legal system and its entitlement to demand citizens’ allegiance.
These considerations have direct implications for the proper place of policymaking in adjudication: while they do not go as far as excluding policymaking from adjudication (which, as argued above, would be a step too far), they do provide a reason against judicial policymaking, precisely because policymaking is not subject to requirements such as consistency with past decisions in the same way that arguments of principle are. This means that when a private law judge engages in policymaking, she is doing something that stands in tension with a central aspect of her role and, as such, requires justification. When exactly the justification will be available, however, is a question that requires another, and much more extensive, discussion.
To conclude, Dworkin’s thesis should be corrected by recognizing that although the primary task of private law judges is to render principled decisions on the parties’ entitlements according to the law, there remains an extent to which their decisions, in at least some cases, do and should involve policymaking. The need to engage in policymaking cannot be eliminated from private law adjudication, but—and this is a crucial “but” that Dworkin’s critics have often overlooked—nor can the reasons articulated by Dworkin against judicial policymaking, which continuously call for adherence to principle. Private law adjudication, and tort adjudication in particular, is an arena of ineliminable tension between principle and policy.